Clinton’s fishy leftovers

26 February 2001

A new policy prescribes fishways for all hydro projects, and not just for fish, according to the national-hydropower-association (NHA).

The policy, published in the Federal Register at the close of the Clinton administration, expands regulators’ unilateral fishway prescription authority to include passage of all forms of ‘freshwater, estuarine and marine animal life other than mammals and birds’. The proposal also broadens the definition of fishway beyond its established legal meaning. In the 1992 energy Policy Act, Congress limited fishway prescriptions to ‘physical structures, facilities and devices’. The proposed policy, published by the Departments of Interior and Commerce on 22 December 2000, expands that definition to include projects’ operating schedules, as well as water spill, flow temperature and level.

In its response to the policy’s publication, the NHA has said that by expanding the definition of fish, the proposal gave government agents ‘broad new latitude in determining the operations, future plans and ultimately the economic viability of hydroelectric projects’.

The publication of the policy comes as the Federal Energy Regulatory Commission (FERC), and particularly the role played by resource agencies, faces increased scrutiny. Interior’s US Fish and Wildlife Service (FWS) and Commerce’s National Marine Fisheries’ Service (NMFS) each have unbridled powers under section 18 of the Federal Power Act (FPA) to prescribe a fishway. Both agencies may also recommend changes to project operations under section 10 of the FPA, where all participants in a licensing proceeding may comment and FERC may balance environmental interests against other public interests.

Industry has long complained that the current licensing process results in lost generation through relicensing and prevents new hydro development. It has sought reforms that would require resource agencies to balance their mandatory licence conditions with other issues in the public interest and project economics.

The association called for the immediate rescission of the policy, and said that its potential impact of generation capacity and the cost of electricity was ‘staggering’. ‘Tens of billions of dollars could be expended without even passing acknowledgement by the departments of the public interest,’ NHA said in its concluding comments.



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